Hearsay and circumstances of its admissibility - Multiple hearsay

Learning Outcomes

This article examines the concept of multiple hearsay, often referred to as hearsay within hearsay, under Federal Rule of Evidence 805. You will learn how to identify statements containing multiple layers of hearsay and understand the requirement that each distinct layer must independently satisfy a hearsay exception or exclusion for the combined statement to be admissible. This knowledge is essential for dissecting complex evidence scenarios presented in MBE questions.

MBE Syllabus

For the MBE, you must understand the rules governing the admissibility of out-of-court statements offered for their truth. Regarding multiple hearsay, you should be prepared to:

  • Identify when a statement contains more than one level of hearsay (hearsay within hearsay).
  • Understand and apply Federal Rule of Evidence 805.
  • Analyze each level of a multiple hearsay statement independently.
  • Determine whether each level of hearsay meets the requirements of a hearsay exception or exclusion.
  • Conclude whether the entire statement is admissible based on the admissibility of each individual hearsay layer.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Under FRE 805, for a statement containing hearsay within hearsay to be admissible, what is required?
    1. Only the outer layer of hearsay needs an exception.
    2. Only the inner layer of hearsay needs an exception.
    3. Both the inner and outer layers of hearsay must conform to a hearsay exception or exclusion.
    4. The statement is never admissible due to its unreliability.
  2. A police officer testifies in court, "The witness told me that the victim yelled, 'The defendant is getting away!'" If offered to prove the defendant fled, how should this statement be analyzed?
    1. As non-hearsay because it was said by the victim.
    2. As admissible under a single hearsay exception for the witness's statement.
    3. As multiple hearsay requiring exceptions for both the victim's yell and the witness's statement to the officer.
    4. As inadmissible character evidence.
  3. Which of the following scenarios presents a potential multiple hearsay issue?
    1. A witness testifies, "I saw the defendant run the red light."
    2. A diary entry offered to prove the author's state of mind.
    3. A business record containing a statement made by a customer recorded by an employee.
    4. A witness testifies, "The defendant told me he ran the red light."

Introduction

Hearsay, an out-of-court statement offered to prove the truth of the matter asserted (FRE 801(c)), is generally inadmissible unless it falls within an exception or exclusion (FRE 802). Sometimes, however, an out-of-court statement itself contains another out-of-court statement. This situation is commonly referred to as multiple hearsay or "hearsay within hearsay."

Federal Rule of Evidence 805 directly addresses this scenario. It provides that hearsay included within hearsay is not excluded by the rule against hearsay if each part of the combined statement conforms with an exception to the rule. This means every individual layer of hearsay must independently meet the requirements of a hearsay exception or exclusion (such as an opposing party's statement under FRE 801(d)(2)) to be admissible.

Key Term: Multiple Hearsay An out-of-court statement that incorporates another out-of-court statement (hearsay within hearsay), where admissibility requires each level of hearsay to independently qualify under an exception or exclusion.

Analyzing Multiple Hearsay (FRE 805)

When confronted with a statement that appears to contain multiple levels of hearsay, you must dissect it layer by layer. The key under FRE 805 is that each link in the chain must be admissible.

Step 1: Identify the Layers

First, break down the offered evidence to identify each distinct out-of-court statement being offered for its truth. Determine who made each statement and when.

Step 2: Analyze the Outermost Layer

Assess the admissibility of the main out-of-court statement (the one being directly reported by the testifying witness or contained in the document presented). Does this statement, considered on its own, meet a hearsay exception or exclusion?

Step 3: Analyze the Inner Layer(s)

Next, examine the embedded out-of-court statement(s). Independently determine if each inner statement qualifies under a hearsay exception or exclusion.

Step 4: Determine Overall Admissibility

Only if every layer of hearsay independently satisfies an exception or exclusion will the entire statement be admissible under FRE 805. If even one layer fails to qualify, the entire statement (or at least the part dependent on the inadmissible layer) must be excluded.

Worked Example 1.1

Witness testifies: "Officer Miller told me yesterday that the accident victim, just before losing consciousness, whispered, 'The blue car ran the light.'" The proponent offers this to prove the blue car ran the light. Is the full statement admissible?

Answer: No. This is multiple hearsay. Layer 1 (Outer): Officer Miller's statement to Witness ("the accident victim...whispered, 'The blue car ran the light.'"). This is an out-of-court statement offered for its truth. Does it meet an exception? Unlikely. It's not an excited utterance, present sense impression, etc., made by Officer Miller. Layer 2 (Inner): The victim's whisper ("The blue car ran the light."). This is also an out-of-court statement offered for its truth. Does it meet an exception? Possibly. It might be a dying declaration (FRE 804(b)(2)) if the victim believed death was imminent, or perhaps an excited utterance (FRE 803(2)) if made under the stress of the accident. Conclusion: Even if the inner layer (victim's statement) meets an exception, the outer layer (Officer Miller's statement to Witness) likely does not. Because each part does not conform to an exception, the full statement as reported by Witness is inadmissible under FRE 805.

Worked Example 1.2

Plaintiff offers a properly authenticated hospital record (business record under FRE 803(6)) made by Nurse containing the entry: "Patient stated, 'My chest started hurting right after the defendant punched me.'" This is offered in a battery case to prove the punch caused the chest pain. Is the Patient's statement within the record admissible?

Answer: Yes. This is multiple hearsay, but both layers are admissible. Layer 1 (Outer): The hospital record itself. Assuming all requirements are met (made in regular course, by person with knowledge/duty, etc.), it qualifies under the business records exception (FRE 803(6)). Layer 2 (Inner): The Patient's statement ("My chest started hurting..."). This is an out-of-court statement offered for its truth (that the pain started after the punch). It qualifies under the exception for statements made for medical diagnosis or treatment (FRE 803(4)), as it describes symptoms and their apparent cause, relevant to treatment. Conclusion: Because the outer layer (hospital record) meets the business records exception and the inner layer (Patient's statement) meets the medical diagnosis/treatment exception, the Patient's statement within the record is admissible under FRE 805.

Exam Warning

A common pitfall is finding an exception for one layer of hearsay and assuming the entire statement is admissible. Remember FRE 805's strict requirement: every single layer must qualify independently. If any layer lacks an exception or exclusion, the statement containing that layer is inadmissible hearsay.

Summary

Multiple hearsay, or hearsay within hearsay, refers to an out-of-court statement that contains another out-of-court statement. Under FRE 805, such a combined statement is admissible only if each distinct hearsay layer independently satisfies a hearsay exception or exclusion. To analyze multiple hearsay, identify each out-of-court statement, determine if it's offered for its truth, and then assess whether each qualifies under an exception (e.g., excited utterance, business record, statement for medical treatment) or an exclusion (e.g., opposing party's statement). If any layer fails, the combined statement is inadmissible to the extent it relies on that layer.

Key Point Checklist

This article has covered the following key knowledge points:

  • Multiple hearsay consists of one or more out-of-court statements embedded within another out-of-court statement.
  • FRE 805 governs the admissibility of multiple hearsay.
  • Each separate hearsay statement (each "layer") must independently qualify for a hearsay exception or exclusion.
  • If any layer of hearsay does not meet an exception or exclusion, the entire combined statement is inadmissible hearsay (unless the problematic layer can be redacted).
  • Common exceptions/exclusions often seen in multiple hearsay layers include opposing party statements, excited utterances, present sense impressions, statements for medical diagnosis/treatment, and business records.

Key Terms and Concepts

  • Multiple Hearsay
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